July 10 (Bloomberg) -- A citizen’s privacy board will
consider whether opponents of U.S. spying programs should be
represented before a secret court overseeing government
surveillance -- as recommended by a former judge on that court.

Altering how the Foreign Intelligence Surveillance Court
operates is one of several suggestions that deserve “serious”
consideration, David Medine, chairman of the Privacy and Civil
Liberties Oversight Board, said in an interview.

The five-member board held its first public meeting
yesterday in Washington to hear from former government officials
and legal and civil-rights experts on U.S. programs exposed by
ex-National Security Agency contractor Edward Snowden to spy on
Americans’ phone records and e-mails.

The secret court is “one-sided” because it only hears
from the government, James Robertson, a former federal judge
based in Washington who served on the court from 2002 to 2005,
told the panel yesterday. He told the Associated Press that he
left the court over concerns about the surveillance.

“We had a range of recommendations on all sides that have
given us a lot of things to think about,” Medine said after the
seven-hour meeting. “We are going to continue to review the
FISA court opinions and we’re going to continue to get briefings
from the government so that we can better understand the details
of these programs.”

The board is charged under federal law with ensuring U.S.
spying programs have privacy controls. Medine, a former partner
at the WilmerHale law firm in Washington, said the panel plans
to release a report with recommendations on the spying programs.

FISA Court

He said opponents could have some kind of representation
similar to lawyers who represent detainees at the U.S. military
detention base in Guantanamo Bay, Cuba.

James Baker, who served in the Justice Department and
represented the government before the FISA court from 1998 to
2007, said having an adversarial check could slow down
surveillance approvals.

“If you now interject yet another person in the system you
have to think about what is that going to do to the speed and
agility of that program,” Baker told the board. “This has been
talked about for years and it’s not been adopted.”

The government has the authority under existing law to
initiate emergency surveillance and get approval from the court
later.

Phone Records

Snowden exposed a program under which the NSA collects
telephone records on millions of Americans from Verizon
Communications Inc. and stores it in a database that can be
searched.

Patricia Wald, a board member and former federal judge
appointed by Democratic President Jimmy Carter, asked whether
telecommunications carriers could be required to retain and
store the data, rather than the NSA.

Steven Bradbury, who served as head of the Justice
Department’s office of legal counsel under Republican President
George W. Bush, said imposing the requirement on the companies
would be costly and less efficient.

Multiple databases would have to be created by different
companies, which would probably be paid for by the government,
he told the board.

Telecommunications and Internet companies that are required
to provide the government with data on U.S. citizens want to
reveal the extent of requests they receive from law enforcement
agencies, said Ashkan Soltani, an independent technology
researcher.

“They’re dying to reveal that it is in fact not as bad as
it seems or that the NSA is overreaching,” he told the board.

Facebook, Google

Google Inc., Apple Inc. and Facebook Inc., for example,
have asked the court for permission to disclose information
about government requests for user data. No companies were
represented at yesterday’s session.

Medine said the board hasn’t requested a meeting with any
of the companies. “At this point we haven’t reached out to
them,” he said. “If they want to come see us we certainly
can.”

Intelligence agencies aren’t required to get individual
warrants from the FISA court to conduct surveillance that
involves the incidental collection of communications of
Americans under the two programs exposed by Snowden. However,
individual warrants are required when an American is the target
of surveillance.

‘Over Broad’

Regardless, the bulk collection of telephone records is
illegal, said Gregory Nojeim, a senior lawyer for the Center for
Democracy and Technology in Washington

“It’s over broad,” he told the board. “It can’t be the
case that everyone’s telephone records are relevant to
investigations.”

The collection was authorized by Congress under a 2008 law.

Elizabeth Goitein, a lawyer with the New York City-based
Brennan Center for Justice, said the board should recommend that
individual warrants be required for the collection of any
communications of Americans, the way it was done before the 2008
law.

Baker, the former Justice Department lawyer, said the
government was able to make the FISA process work prior to 2008.

“The ability for the government to obtain information and
create massive databases raises serious constitutional issues,”
Kate Martin, director of the nonprofit Center for National
Security Studies, a Washington-based government watchdog, told
the board.

Bradbury didn’t rule out the possibility of allowing
opponents of surveillance to have a representative before the
court. He said perhaps a permanent officer of the court or the
executive branch could play the role.

Two other recommendations included requiring the court to
declassify portions of its work and establishing tougher legal
standards the government must meet before it is allowed to
collect information involving the communications of U.S.
citizens.